Court File and Parties

Court File No: 439/08 Date: 2009-05-18 Superior Court of Justice - Ontario Divisional Court

Re: Abdul Kamara, Applicant - and - Workplace Safety & Insurance Appeals Tribunal and Toronto Transit Commission, Respondents

Before: J. Wilson, Lederman, and Low JJ.

Counsel: Adam J. Ezer, for the Applicant Gillian Shaw, for the Respondent, Workplace Safety & Insurance Appeals Tribunal Norma Priday, for the Respondent, Toronto Transit Commission

Heard at Toronto: April 28, 2009

Endorsement

Nature of Proceeding

[1] The applicant, Abdul Kamara, applies for judicial review of the decision of the Respondent Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) dated July 13, 2004 and the denial of his request for reconsideration in June 2005. In that decision, WSIAT allowed Mr. Kamara’s appeal only in part, and found that:

a) He did not have initial entitlement for an accident that occurred on November 4, 1996 while he was employed by the Respondent, the Toronto Transit Commission (TTC);

b) He did have initial entitlement on an aggravation basis for an accident that occurred on January 18, 1997 and was entitled to health care benefits arising out of this claim; but

c) He was not entitled to temporary disability benefits in respect of the January 18, 1997 accident as he did not lose any time off work; and

d) He sustained no permanent impairment as a result of the January 18, 1997 accident.

Issues Raised on the Application

[2] The grounds on which the application for judicial review is based are as follows:

i) The Respondent WSIAT erred in law in considering a general discussion paper as evidence, rather than deciding the matter based on the record before it, and in accordance with section 4(4) of the Workers' Compensation Act 1990, c.W.11;

ii) The Respondent WSIAT erred in law in failing to follow operational policy by not seeking an opinion from the Medical Advisor;

iii) The Respondent WSIAT erred in law and acted unreasonably in failing to find that the Applicant sustained a permanent, or alternatively, a temporary impairment as a result of the January 18, 1997 accident.

Standard of Review

[3] WSIAT is the final appellate forum in matters of workplace safety and insurance in Ontario. Its decisions are protected by a strongly worded privative clause which provides that its decision is final and not open to question or review in Court. Numerous decisions of the Court of Appeal and the Divisional Court have already determined that decisions of WSIAT are subject to the highest degree of deference and existing jurisprudence shows that Courts should interfere in its decisions only where they are found to be unreasonable. The standard of review is, therefore, reasonableness. “To interfere, the reviewing court must find that there are no lines of reasoning supporting the decision that could have reasonably led the Tribunal to reach the decision that it did”: see Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, [2008] O.J. No. 4103 (C.A.) at paras. 16, 22.

Discussion Paper

[4] As part of its practice, WSIAT commissions medical discussion papers to provide general background information on medical issues which may be raised in appeals. They are intended to provide a broad and general overview of a topic and are written to be understood by lay individuals. The Tribunal is not bound by the information in a discussion paper in any particular case. Rather, the discussion papers provide a repository of medical knowledge in a variety of areas that both the Tribunal and parties may look to. As well, it is always open to parties to adduce their own medical evidence to challenge or to distinguish the information in a discussion paper. In the instant case, the discussion paper in question was provided to the applicant well in advance of the hearing in order to allow him to respond to it as he saw fit. However, no response or objection was forthcoming.

[5] There is no reasonable basis for finding that WSIAT based its decision on the general discussion paper alone rather than on the total evidence before it.

[6] It is clear from repeated references in the Tribunal’s reasons to the applicant’s own medical reports and records that it relied on the evidence adduced by the applicant, and not merely on the information in the discussion paper, in concluding that his back symptoms were not as a result of an injury sustained in the January 18, 1997 accident while working at the TTC.

[7] The onus was on the applicant to show that he suffered an injury in the accident on January 18, 1997 and that the injury was the cause of a permanent disability. The medical reports and records were clearly considered by the Tribunal, and its conclusion was reasonable in light of the evidence as a whole.

Section 4(4) of the Pre-1997 Workers’ Compensation Act

[8] Section 4(4) of the pre-1997 Workers’ Compensation Act provided as follows:

4(4) In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant.

[9] On its review of the evidence, WSIAT did not find that the evidence for or against the issue was approximately equal in weight. To the contrary, it found that it was more likely than not that the applicant’s back problems were a result of the aging process rather than from the accident on January 18, 1997. As it did not find any equality in evidence for and against the issue, section 4(4) of the Workers’ Compensation Act was inapplicable and there was no reason for WSIAT to refer to it.

Alleged Failure to Follow Operational Policy

[10] The applicant asserts that WSIST erred in not seeking the opinion of a medical advisor in accordance with Workplace Safety and Insurance Board’s operational policy 02-01-02, a term of which refers to the roster of staff medical doctors who are employed at the Workplace Safety Insurance Board (“WSIB”). The policy states that if it is not clear that the injury or disablement diagnosis provided is the result of the accident or disablement history described, an opinion is sought from the medical advisor. It is clear that this operational policy deals with the WSIB and is not applicable to the WSIAT when hearing an appeal. Further, it was not necessary for the WSIAT to consider exercising its discretionary power to refer questions to a health professional in the context of an appeal in this case as it was able to come to a conclusion on the medical issues and evidence before it without seeking the assistance of a health professional.

[11] As a specialized expert tribunal, WSIAT encounters issues of medical causation every day. Whether a medical condition arises out of an accident in the course of a worker’s employment lies at the heart and core of its function and expertise. WSIAT’s decisions in this regard are entitled to deference.

[12] Accordingly, it was reasonable for the panel to come to a decision based on the record before it without referring questions to a medical advisor or health professional.

Failure to Find that the Applicant Sustained a Permanent or Alternatively, a Temporary Impairment

[13] On this issue the applicant in essence is asking the Court to review and re-weigh the evidence on which WSIAT relied. This is not the Court’s function on a judicial review application.

[14] The evidence before the Tribunal was that the applicant lost no time from work as a result of the January 18, 1997 injury or that he suffered any wage loss upon his return to work immediately after the accident. Accordingly, the panel’s finding that the applicant was not entitled to temporary benefits was reasonable.

[15] The applicant argued that he was placed on duties that his doctors found to be inappropriate. There was evidence to suggest that the contrary was the case. In any event, the issue is not whether the TTC had the applicant perform work that exceeded his capabilities. Rather, having decided that the applicant did suffer an injury on January 18, 1997, the question for the panel was whether the applicant was entitled to temporary benefits as a result. The panel decided for rational reasons based on the evidence that he was not.

[16] Furthermore, the medical records of the applicant disclose that he had a long standing history of low back pain preceding the time he worked for the TTC and there was ample evidence to support the Tribunal’s conclusion that the applicant did not suffer a permanent impairment as a result of the January 1997 incident.

Conclusion

[17] We find that the Tribunal’s decisions were, in all respects, reasonable, supported by the evidence and fell within a range of possible acceptable outcomes which are defensible in respect of the facts and the law.

[18] The respondent, TTC, raised the additional issue that the application should be dismissed on the grounds of delay and the doctrine of laches. In view of our disposition of the merits of the application, it is unnecessary to consider this issue.

[19] The application is, therefore, dismissed.

[20] WSIAT does not seek costs. The TTC shall have its costs as against the applicant, but given the fact that the issues on the application were not complex, that the TTC’s position was largely in support of WSIAT who was represented and argument took approximately 2 hours, we fix such costs at $2,500 payable by the applicant, if demanded.

J. Wilson J.

Lederman J.

Low J.

Released: May 18, 2009